[1] In determining the amount of damages for a tort due to a doctor's breach of duty of care, whether the factors of the victim's side unrelated to the victim's fault, such as the risk of physical disorder or disease, may be considered (affirmative); and in such a case, the limit of fact-finding or set rate for limitation of liability / Whether liability can be limited solely on the ground of the occurrence of damage in the course of treatment, such as where the damage was caused due to a doctor's negligence in the ordinary duty of care required (negative)

[2] In a case where a creditor claims a foreign currency claim which is a monetary claim designated in a foreign currency by converting it into the Korean currency, the time of conversion (=the time of closing of argument in the trial of fact

[1] Even if a medical doctor’s breach of duty of care is recognized for tort liability, if the damage is caused or expanded by competition between the error of medical practice and the factors on the part of the victim, even if the damage is irrelevant to the cause on the part of the victim, such as the risk of physical personality or disease, if the victim’s factors are not related to the cause on the part of the victim, in light of the form, degree, etc. of the disease, the court may take into account the factors on the part of the victim who contributed to the occurrence or expansion of the damage by applying the legal principles of comparative negligence by setting the amount of compensation, mutatis mutandis applying the principle of comparative negligence. However, finding of liability or setting the rate of liability limitation should not be considerably unreasonable in light of the principle of equity. However, without any circumstance to deem that the risk incidental to medical practice should be reduced due to the characteristics of the disease, limitation of treatment method, etc., it should not be limited solely on the ground that the damage was caused in the course of medical treatment, etc. in light of generally required judgment ability or medical technology level.

[2] Where a creditor claims foreign currency claims which are monetary claims designated in a foreign currency into Korean currency by exercising his/her right to substitute benefit, the court order the debtor to perform the obligation shall set the foreign exchange rate at the time of closing argument of the fact-finding court which is most close to the debtor's performance in reality as the standard for converting foreign currency into Korean currency.

[1] Articles 396, 750, and 763 of the Civil Act / [2] Article 378 of the Civil Act

[1] Supreme Court Decision 2014Da16968 Decided July 10, 2014 (Gong2014Ha, 1564) / [2] Supreme Court en banc Decision 90Da2147 Decided March 12, 1991 (Gong191, 1161)

Plaintiff 1 and one other (Seoul Central Law Firm, Attorney Jeong Young-cheon, Counsel for the plaintiff-appellant)

School Foundation ○○ School (Law Firm Kuduk, Attorneys Choi Gi-woo et al., Counsel for the defendant-appellant)

Busan High Court Decision 2014Na8608 decided August 27, 2015

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

A. Even if a medical doctor’s breach of duty of care is recognized for tort liability, where the damage was caused or expanded due to the competition between the error of medical practice and the factors on the part of the victim, even though the factors on the part of the victim were irrelevant to the victim’s fault, such as the risk of physical personality or disease, in light of the form, degree, etc. of the disease, the court may apply the legal principle of comparative negligence to determine the amount of damages, and take into account the factors on the part of the victim who contributed to the occurrence or expansion of the damage by analogy of the legal principle of comparative negligence. However, finding of liability limitation or setting the rate thereof should not be considerably unreasonable in light of the principle of equity (see, e.g., Supreme Court Decision 2014Da16968, Jul. 10, 2014). However, in cases where the damage was generally required in the course of medical practice or medical treatment without any reasonable reason, such as the victim’s ability to limit the risk accompanying the medical practice in question.

B. According to the reasoning of the judgment below, the court below acknowledged facts as stated in its reasoning. The accident of this case occurred on the day and the next day of the surgery of this case, and since Plaintiff 1’s oxygen was within the normal range and there was no special opinion even after activeness, it seems that it was difficult for the medical personnel of ○○ University Hospital operated by the defendant (hereinafter “the defendant”) to easily distinguish between Plaintiff 1’s main causes of difficulty in respiratory and pain after the operation, and it was difficult to easily distinguish between Plaintiff 1’s difficulty in respiratory, and Defendant medical personnel’s efforts to secure the airway and maintain the respiratory system by the method of general recommendation for alcohol with low blood transfusion, as well as the limitation of liability based on the equitable principle, such as inevitable risks accompanying the medical practice, and the limitation of liability ratio in ordinary medical malpractice cases should be limited to 2/3 of the defendant’s liability.

C. However, it is difficult to accept the above determination by the court below for the following reasons.

1) Review of the reasoning of the lower judgment and the record reveals the following circumstances.

① The instant accident was caused by the Defendant’s failure to observe the progress after the surgery with Plaintiff 1 and to take appropriate measures accordingly, and there is no circumstance to deem that there was any contribution on the part of the victim, such as Plaintiff 1’s negligence or physical handicap.

② From 22:00 on December 2, 2010 after the instant surgery, Plaintiff 1 consistently complained of respiratory distress. At around 00:20 on December 3, 12, 201, the next day, Plaintiff 1 appealed that the guardian had a large volume of skin and the difficulty of hiding, and the nurse directly confirmed that the skin flow.

③ Medically, it is possible to expect the pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary mar from the blood transfusion due to the fatal merger of the instant surgery. The examination of the medical record reveals that the causes of the Plaintiff 1’s pulmonary pulmonary mar from the carbon dioxide mixed water generated to the Plaintiff 1 are doubtfully suspected of preventing the co-agency’s pulmonary pulmonary mal mar from the co-institution’

④ At around 04:30 on December 3, 2010, Plaintiff 1 suffered from the respiratory part, and the cause seems to have been the respiratory part due to the combination of carbon dioxide. Even if there was no special opinion after the pulmonary part, such as that the pulmonary part was located within the normal range, etc. before the occurrence of the pulmonary part, the pulmonary part cannot be confirmed properly as to whether the pulmonary part was affected by the pulmonary part.

⑤ After the Plaintiff 1’s respiratory field occurred, the Defendant administered an Athro-ray path at around 04:50, and performed cardiopulmonary resuscitation at around 05:00. Around 05:40, the Defendant performed cardiopulmonary resuscitation at around 05:40. Only around 06:15. After the implementation of the Plaintiff’s insertion, the Plaintiff performed an Athropulmonary resuscitation. From the blood carbon dioxide concentration exceeding the normal range from around 06:16 to around 06:30.

④ If the Plaintiff 1’s respiratory suspension occurred due to the Plaintiff’s force from around 04:30 to around 06:15, due to the Plaintiff’s interference with the crum’s tube, the first aid (in the Athro, via an Athroop, via an Athrooping, via an Athrooping) taken by the Defendant cannot be an appropriate measure against the Plaintiff 1’s carbon dioxide mixtures. Ultimately, from around 04:30 to around 06:15, the countermeasures against the Plaintiff 1’s carbon dioxide mixtures have not been taken properly.

2) In light of the circumstances leading up to Plaintiff 1’s occurrence of the respiratory part, the Defendant’s measures taken after the respiratory part occurred, etc., the lower court should have carefully examined the anticipated after the instant operation and the degree of the risk, what is the appropriate response method to avoid such risk, and whether the Defendant took such measures, and subsequently limited the Defendant’s liability ratio, but only for reasons indicated in its holding, limited the Defendant’s liability ratio. In particular, in the instant case where it is difficult to deem that the victim was negligent in the occurrence or expansion of damages, the lower court should have deliberated more sufficiently on the existence of such circumstances in order to limit the Defendant’s liability on the grounds of inevitable risks accompanying the characteristics of the medical act. Furthermore, the lower court’s limitation of liability ratio in the ordinary medical malpractice case that the lower court took account of the determination of the limitation of liability ratio is merely a vague trend.

In conclusion, the lower court erred by misapprehending the legal doctrine on limitation of liability in a damages case, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

2. Regarding ground of appeal No. 2

If a physician breached his/her duty of care as a good manager, thereby causing irreparable damage to the patient’s physical function, and only the treatment to the extent that the recovery or prevention of further aggravation was continued after the damage, a doctor’s treatment act is not performed in accordance with the original content of the medical treatment obligation, or is merely performed as part of the damage, and thus cannot claim for the payment of surgery and medical expenses against the patient. This also applies to a case where a doctor’s liability for damages is limited in view of the victim’s physical nature, disease, and risk of treatment, such as surgery, even though there is no cause attributable to the victim due to the occurrence or expansion of damage (see Supreme Court Decision 2011Da28939, Nov. 27, 2015).

According to the reasoning of the lower judgment, the lower court set off the above medical expense claim and the Plaintiff’s damage compensation claim on the premise that Plaintiff 1 was liable for payment for the portion exceeding the Defendant’s liability ratio among the medical expenses not paid to the Defendant from December 1, 2010 to July 14, 2014.

However, in light of the above legal principles, the act of treating symptoms after the occurrence of the instant medical accident is not in accordance with the original content of the medical treatment obligation under the original medical contract, or is merely performed as part of the damage transfer, and thus, the Defendant is not entitled to claim the payment of the medical expenses from the Plaintiff 1.

Nevertheless, the lower court set-off the Plaintiff’s damage claim on the premise of the existence of the Defendant’s medical expense claim. In so doing, it erred by misapprehending the relevant legal doctrine, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning

3. As to the fourth ground for appeal

Where an obligee claims foreign currency claims which are monetary claims designated in a foreign currency into Korean currency by exercising the right to substitute payment, the court shall, when ordering the obligor to perform the claim, set the foreign exchange rate at the time of closing argument of the fact-finding court nearest in the event the obligor performs the claim in reality as the reference point for converting foreign currency into Korean currency (see Supreme Court en banc Decision 90Da2147 delivered on March 12, 191, etc.).

However, according to the reasoning of the lower judgment, the lower court maintained the first instance judgment, which calculated the lost income based on the monthly average income 3,94,746 won converted from USD 877, which was the average per share income of women and other medical professionals based on employment and wage estimates by occupation of the United States of America, on May 2012, the lower court maintained the first instance judgment, which was calculated based on the monthly average income 3,94,746 won converted from the date of closing argument in the first instance trial.

However, in light of the above legal principles, the above determination by the court below is erroneous by misapprehending the legal principles as to the base point of time for converting foreign currency claims into Korean currency, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit

4. The judgment of the court below is reversed without examining the remaining grounds of appeal, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Shin (Presiding Justice)